36-72-5 G
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36-72-5.
Application for a permit shall include, at a minimum, the following
information:
(1) Evidence of ownership of the land on which the cemetery or
burial ground is located in the form of a legal opinion based upon
a title search;
(2) A report prepared by an archeologist stating the number of
graves believed to be present and their locations as can be
determined from the use of minimally invasive investigation
techniques, including remote sensing methods and the use of metal
probes, which activities shall not require a permit;
(3) A survey prepared by or under the direction of a registered
surveyor showing the location and boundaries of the cemetery or
burial ground based on an archeologist's report;
(4) A plan prepared by a genealogist for identifying and notifying
the descendants of those buried or believed to be buried in such
cemetery. If those buried or believed to be buried are of
aboriginal or American Indian descent, the genealogist, in
preparing the notification plan, shall consult with the Council on
American Indian Concerns created pursuant to Code Section
44-12-280 and shall include in the notification plan not only any
known descendants of those presumed buried but also any American
Indian tribes as defined in paragraph (2) of Code Section
44-12-260 that are culturally affiliated; and
(5) A proposal for mitigation or avoidance of the effects of the
planned activity on the cemetery or burial ground. If the
proposal includes relocation of any human remains or burial
objects, the proposal shall specify the method of disinterment,
the location and method of disposition of the remains, the
approximate cost of the process, and the approximate number of
graves affected.
36-72-6 G
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36-72-6.
The applicant shall implement its plan for identifying and locating
descendants no later than the date the application is submitted to
the governing authority. The governing authority shall review the
applicant's plan for identifying and notifying the descendants of
the deceased persons and may require as a condition for issuing a
permit that the applicant implement additional reasonable attempts
to identify and locate descendants. Notice to possible descendants
shall include information on how to contact the governing authority
and a summary of the rights of descendants under this chapter. The
governing authority shall promptly inform any descendant who
indicates an interest in the disposition of the human remains and
burial objects regarding any proposals for mitigation, the terms of
any permit issued, the time and place of any scheduled public
hearings, and appeal procedures and events.
36-72-7 G
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36-72-7.
(a) Within 15 days after it is satisfied that all reasonable effort
has been made to notify descendants, as provided in Code Section
36-72-6, and following receipt of the recommendations of a board or
commission created pursuant to Code Section 36-72-9, the governing
authority shall schedule a public hearing at which any interested
party or citizen may appear and be given an opportunity to be heard.
In addition to the notice required in Code Section 36-72-6, notice
of the public hearing shall be advertised in the legal organ of the
jurisdiction once a week for the two consecutive weeks immediately
preceding the week in which any such hearing is held.
(b) Within 30 days after the conclusion of the public hearing, the
governing authority shall notify the applicant in writing of its
decision. The governing authority shall have the authority to deny
the application with written reasons therefor, to issue a permit
adopting the application in whole or in part, or to issue a permit
which may include additional requirements to mitigate the proposed
activity's adverse effects on the cemetery or burial ground,
including but not limited to relocation of the proposed project,
reservation of the cemetery or burial ground as an undeveloped area
within the proposed development or use of land, and respectful
disinterment and proper disposition of the human remains. The
governing authority may adopt the applicant's proposal for
mitigation.
36-72-8 G
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36-72-8.
The governing authority shall consider the following in making its
determination:
(1) The presumption in favor of leaving the cemetery or burial
ground undisturbed;
(2) The concerns and comments of any descendants of those buried
in the burial ground or cemetery and any other interested parties;
(3) The economic and other costs of mitigation;
(4) The adequacy of the applicant's plans for disinterment and
proper disposition of any human remains or burial objects;
(5) The balancing of the applicant's interest in disinterment with
the public's and any descendant's interest in the value of the
undisturbed cultural and natural environment; and
(6) Any other compelling factors which the governing authority
deems relevant.
36-72-9 G
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36-72-9.
The governing authority of any county whose population is in excess
of 290,000 as established by the United States decennial census of
1980 or any such future census shall be authorized to establish or
empower a new or existing commission or board to hear and review any
application filed pursuant to Code Section 36-72-5. The board or
commission shall conduct a public hearing within 60 days of the
filing of an application and shall make a written recommendation to
the governing authority no later than 15 days following the public
hearing with respect to the sufficiency of the notice to
descendants, the plan for mitigation, the disturbance and adverse
effects on the cemetery or burial ground, the survey of the
cemetery, and plans for disinterment and reinterment.
36-72-10 G
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36-72-10.
The governing authority shall be authorized to impose an application
fee which shall reflect the cost to the governing authority for
processing and reviewing the application including, but not limited
to, the cost of hiring an attorney, independent archeologist, and
independent surveyor to assist in making recommendations regarding
the applicant's plan. Such fee, if imposed, shall not exceed
$2,500.00.
36-72-11 G
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36-72-11.
Should any applicant or descendant be dissatisfied with a decision
of the governing authority, he or she, within 30 days of such
decision, may file an appeal in the superior court of the county in
which the cemetery or burial ground is located in addition to the
superior courts enumerated in Code Section 50-13-19.
36-72-12 G
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36-72-12.
Until the expiration of the time for appeal as set forth in Code
Section 36-72-11, the applicant shall not begin or resume activities
which comply with the permit issued by the governing authority. If
an appeal is filed, the applicant may begin or resume activities
which comply with the permit only upon consent of the governing
authority and the party seeking judicial review or upon order of the
reviewing court for good cause shown.
36-72-13 G
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36-72-13.
The governing authority or local law enforcement agency shall
inspect as necessary to determine whether the applicant has complied
with the provisions of this chapter requiring cessation or
limitation of activity and with the terms of the permit as issued by
the governing authority or as modified by the superior court or
reviewing court.
36-72-14 G
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36-72-14.
(a) Notwithstanding any provisions of this chapter to the contrary,
when any agency, authority, or political subdivision of the state
seeks to file an application for a permit under this chapter, the
superior court having jurisdiction over the real property wherein
the cemetery or burial ground is located shall have exclusive
jurisdiction over the permit application. The superior court shall
conduct its investigation and determination of the permit in
accordance with Code Sections 36-72-6 through 36-72-8.
(b) When activities of an agency, authority, or political
subdivision of the state adversely affect an abandoned cemetery or a
burial ground, such agency, authority, or political subdivision
shall bear the cost of mitigating the harm to the abandoned cemetery
or burial ground or reinterring the human remains as a part of the
cost of the project and is authorized to expend public funds for
such purpose. When activities of a private person, corporation, or
other private entity adversely affect an abandoned cemetery or a
burial ground, such person, corporation, or other entity shall bear
the cost of mitigating the harm to the cemetery or burial ground or
reinterring the human remains. The cost of mitigating the harm to
an abandoned cemetery or to a burial ground or reinterring the human
remains exposed through vandalism by an unidentified vandal or
through erosion may be borne by the governing authority in whose
jurisdiction the abandoned cemetery or burial ground is located.
36-72-15 G
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36-72-15.
Any disinterment and disposition of human remains or burial objects
permitted under this chapter shall be supervised, monitored, or
carried out by the applicant's archeologist and shall be done at the
expense of the person or entity to whom the permit is issued.
36-72-16 G
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36-72-16.
Any person who knowingly fails to comply with the provisions of this
chapter shall be guilty of a misdemeanor of a high and aggravated
nature and, upon conviction, shall pay a fine of not more than
$5,000.00 for each grave site disturbed; provided, however, that any
person who knowingly violates the provisions of Code Section 36-72-4
shall be guilty of a misdemeanor of a high and aggravated nature
and, upon conviction, shall be incarcerated for not more than six
months and shall pay a fine not less than $5,000.00 for each grave
site disturbed.